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ONTARIO 

MINISTRY OF LABOUR 

JUN 2 9 1981 



HUMAN RIGHTS 
COMMISSION 



THE ONTARIO HUMAN RIGHTS CODE, 
R.S.O. 1970, c. 313, as amended 



IN THE MATTER OF : the complaint of Ms. Kathy Hartling 

of St. Catharines, Ontario, that she 
was discriminated against in employ- 
ment by reason of being refused referral 
or recruitment for employment or refused 
employment by the Timmins Police Force, 
Board of Commissioners of Police, City 
of Timmins, Chief Floyd Schwantz and 
their servants and agents, Timmins, 
Ontario, contrary to paragraphs A- ( 1 ) ( a ) 
and/or (b) of the Ontario Human Rights 
Code, as amended. 



APPEARANCES : Messrs. Allan Millward and Derek 

D'OIiveira, Counsel for the Ontario 
Human Rights Commission and Ms. Kathy 
Hartling. 

Mr. Rino Bragagnolo, Q.C., Counsel for 
the Respondents 

A HEARING BEFORE : Peter A. Cumming, a Board of Inquiry 
~~ ~ in the above matter appointed by the 

Minister of Labour, the Honourable 
Robert Elgie, October 2 2, 19 3 0, to 
hear and decide the complaint. 



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DECISION AND ORDER 



The Issue 

The Complainant in the hearing before this Board 
of Inquiry, Ms. Kathy Hartling, of Schumacher, Ontario, 
alleged in her Complaint ( Exhibit #3) and amended Complaint 
( Exhibit #7) that she was discriminated against on t"h e 
basis of her sex, as prohibited by paragraphs 4 ( 1 ) ( a ) and/ 
or 4 ( 1 ) ( b ) of the Ontario Human Rights Code , which read: 

"no person shall... 

(a) refuse to refer or to recruit any 
person for employment; or... 

(b) dismiss or refuse to employ or to 
continue to employ any person, 

because o f . . . sex . . . o f such person or employee." 

The Evidence as to the Factual Situation related to the 
Complain t 

The complainant alleges that in July, 1977, she 

sought employment with the Timmins, Ontario, Police Force, 

at which time, she says, she attended at the police station 

and the desk sargeant, Sargeant Leonard Kathen, a neighbour 

friend of her family, told her the force did not hire women, 

but that she might apply to be a meter maid. ( Tran script , 

pp. 12) She was then 20 years of age, 5 feet S 3M inches 

and some 19 5 pounds, ( Transcript , pp. 11) all of which 

statistics met the minimum requirements imposed by the 

Board of Police Commissioners for consideration for employment 

as a police constable with the Timmins Police Force. 

(Transcript, pp. 132) 



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I have no doubt about her testimony in this regard. 
Indeed, Sargeant Kathen, who retired October 1, 1977, guite 
frankly testified that while he could not recollect what he 
specifically said to Ms. Hartling on the occasion, that he 
might well have said the force did not hire women. ( Transcript , 
pp. 163) However, he was certain that there was not a formal 
policy against hiring women on the part of the Board of Police 
Commissioners. ■( Tran script , pp. 164, 167) In any event, 
given "that the desk sargeant and police chief were near 
retirement", ( Exhibit #7) the Complainant said she "decided 
to wait until there was a new police chief". Therefore, the 
Complainant did nothing further to pursue her possible employ- 
ment by the force until August, 1973. 

Chief Perreault was Police Chief of the Timmins 
Police Force until May, 1978. He was not a named Respondent 
in the complaint. The new Chief of the Timmins Police Force 
as of May, 1978, Chief Floyd Schwantz, a named Respondent, 
cannot be held responsible in any way for the 1977 recruitment 
policy of the Timmins Police Force, as he had no connection 
with the police force until May, 1978. 



The "Timmins Police 
is not a legal entity, and the 
proper respondent to the compl 



Force", another named Respondent, 
refore, is not, in my view, a 
a in t . 



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Finally, the third named Respondent, _the Board of 
Commissioners of Police, City of Timmins, is a continuing 
legal entity and is a proper Respondent in so far as both 
the 1977 incident, and the 1978 incidents which give rise to 
the subject of the Complaint. However, although I accept 
Ms. Hartling's evidence as to the 1977 conversation with the 
desk sargeant, Ms. Hartling did nothing further to pursue the 
possibility of employment with the Police Force, at that time 
and accordingly, if I were considering only the 1977 incident, 
that limited i nci dent mi ght be insufficient to suDport a complaint. 

Counsel for the Respondents argued that the 1977 
incident could not (1) be the basis of a complaint due to the 
limitation of actions period set forth in s. 11 of the Police 
Ac t ; and (2) that assuming this incident could not give rise 
to a complaint due to such limitation of actions period, the 
incident was not properly admissable as evidence with respect 
to a hearing on the Complaint based upon the 1973 incidents. 



I shall deal with both these points. 

In my view, whether or not the 1977 incident was 
barred as a basis for a Complaint, due to a statutory limitation 
of actions period"^ it was relevant evidence to evaluate the 
1973 incidents, and, therefore, properly admissable as evidence. 
However, my findings of fact with respect to events subsequent 
to 1977 have not been influenced in any way by what happened 

^ See generally, Metropolitan Toronto Board of Polic e Commiss- 
i o n e r s et aj and Ontario Human Rights Commission a ; a ] ( 19 79 ) 
27 O.R . (2d) 48 (Oiv. Ct.) 



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when Ms. Hartling approached the Police Force for recruitment 
in 19 77 . I find the 1977 incident to have been so preliminary 
in nature that it just does not mean all that much. Moreover, 
what happened in 1977 was independent of Chief Schwantz who 
was not a member of the force until he became Chief in May, 
1979. My findings of fact with respect to events subsequent 
to 1977 stand on their own, and are not in any way dependent 
upon, or in f luenced , by , the 1977 incident. 

Ms. Hartling, now of St. Catharines, Ontario, had been 
a resident of Schumacher, Ontario (about one-half a mile from 
Timmins) for most of her life. She has completed her Grade 
XII ( Exhibit #4) plus a one year diploma program ( Exhibit # 5 ) 
on "Law and Security Administration", at St, Clair Community 
College, Windsor. She took this program, on the recommendation 
of her high school Guidance Counsellor, as she thought it 
would be an advantage in obtaining a job with the police force. 
She has an obvious and sincere desire to be a police constable. 

Ms. Hartling obtained and submitted a completed 
application ( Exhibit #10) to be appointed a police constable 
with the Timmins police force in August, 1978. In fact, she 
testified she returned the completed application to Chief 
Schwantz personally. ( Transcript , pp. 17, 13, 19) As she 
did not receive any response , and was anxious she went to 
the then Mayor of Timmins, Michael Doody, who was one of the 
two members of the Board of Police Commissioners in October, 



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1978, explained that she had applied but had not heard any- 
thing, expressed her concern about whether she would be 
considered as she was a woman, and was assured by Mayor 
Doody that a qualified woman would be hired, and that he 
would make sure she was contacted shortly. ( Transcript , 
pp. 20, 21) As she did not hear further, she again sought 
Mayor Doody's assistance about ten days later, and he again 
assured her she would be contacted shortly. 

Shortly thereafter, having been contacted by Mayor 
Doody, Chief Schwantz telephoned her and asked her to come 
in for an interview at the police station. There is no real 
dispute as between Chief Schwantz and Ms. Hartiing about what 
was said at the interview which lasted some fifteen to twenty 
minutes. Chief Schwantz criticized her spelling, ( Tran script , 
pp. 22) went over her marks, asked why she thought she would 
be an asset to the police force, and suggested the force 
could not bear the cost to extend the building for a new change 
room and washroom to accommodate a female constable. Chief 
Schwantz then stated that he considered Ms. Hartling's 
communication skills were not adequate for a police constable 
( Transcript , pp. 23). She said that the Chief never stated 
what qualifications were required. Chief Schwarntz's later testimony 
did not dispute her testimony about nis interview with her. 



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Ms. Hartling had no further contact with the police 
force, thinking, quite correctly, that her application had 
been rejected, and some time later, about March 19, 1979, 
commenced work in a sporting goods store. 

Ms. Hartling also applied to the Ontario Provincial 
Police for employment as a police constable in 1979 and 1979, 
but was unsuccessful on the exam she wrote. ( Transcript pp. 
33, 39). 

However, she read an article with the heading 
"Investment in Women Officers is Poor One'', (Exhibit #6), in 
the Timmins newspaper, The Timmins Daily Press, of November 
29, 1979 and a subsequent Editorial of December 2, 1979, and 
as a result wrote a letter to the newspaper ( Exhibit # 8 ) 
printed December 7 or 8. Chief Schwantz also wrote a letter 
to the newspaper ( Exhibit #9). The article, and letters, 
all referred to a public meeting of the Timmins Ratepayers 
Association, at which Chief Schwantz spoke. 

Peter Black, a reporter with the Timmins Daily 
Press from September, 1977 to August, 1979, wrote the news- 
paper article of November 29, 1973, ( Exhibit #6) following 
the Ratepayers' Association meeting at which he took notes 
which formed the basis of the article. Mr. Black testified 
that Chief Schwantz spoke for about 20 minutes and there was 
then a question and answer period. 



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Mr. Black testified: 



"A. Yes he was asked by uh . . one question to 
the effect what he believed his policies to be as far as 
hiring woman for police work. [NOTE BELOW] 

Q. What was his response to that? 

A. He said that he didn't believe that woman 
were particularly suited for police work. 

Q. Did he elaborate on that? 

A. He gave several reasons as I recall - 
there was, he said woman were likely to follow their husbands 
in whatever career moves that their husband might make. He 
mentioned that woman might be unwilling to work weekends, 
shiftwork, especially keeping woman there might be a problem 
keeping woman on the Police force a length of time long enough 
to ensure that they are - reach standards of competence. He 
mentioned the problem of woman becoming pregnant, that this 
might disrupt a smooth employment flow, attirements , he said 
at one point I believe that .... there is a problem of altering 
uniforms for woman as they change size because of pregnancy.'' 
(Transcript , pp. 6 6) 



Exhibit #6 reads: 



"INVESTMENT IN WOMEN OFFICERS IS POOR ONE " 

"From a practical aspect, hiring a policewoman 
simply does not make sense," Timmins Police 
Force Chief Floyd Schwantz told last night's 
annual meeting of the City of Timmins Rate- 
payer's Association. 

The chief was responding to a question on his 
views on the hiring of policewomen. 

He stressed that he didn't want his remarks to 
be interpreted as being "an ti -policewoman " and 
said he knew he would be "castigated in the 
press" for his views. 



His views are "not based on discrimination, but 
on practical considerations," Chief Schwantz 
said. 



Females are unsuitable for police work for 
several reasons, Chief Schwantz said. 

He says that basically women are not a good 
investment for a police department because 
they are prone to leaving the job, thereby 
wasting the money and time involved in their 
training. 



Note: The word "women", as used by this and other witnesses is generally 
mispelled in the Transcript as "woman". 



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He says women will invariably follow their 
husbands wherever his job may lead him and 
leave the force short of manpower. Women also 
will want weekends off to be with their hus- 
bands, the chief said, causing shift scheduling 
probl ems . 

He said that women, unlike men, get pregnant 
and it makes it difficult for a police depart- 
ment to continue their employment. 

"We can't afford to keep changing the size 
of their uniforms," the chief joked. 

Chief Schwantz said that he could see the 
possible use of women in such police force 
work as childrens' services. 

He said it takes at least five years of 
training and duty before he considers a 
policeman top notch, and women aren't 
likely to stay on the job long enough to 
reach that level." 

Exhibit #9 reads: 

"CHIEF SAYS MO DISCRIMINATION 
IN FORCE'S HIRING PRACTICES 

Sir: The article appearing in your paper 
on November 29th, 1978, reported quite 
accurately some of the comments made by me 
when addressing the City of Timmins Rate- 
payers Association (COTRA). 

I would like to set the record straight. 
I was speaking of PRACTICAL considerations, 
a subject I am sure is of interest to most 
taxpayers . 

The same consideration for PRACTICAL matters 
is exercised, and will be exercised in every 
matter that comes to my attention during my 
service to the community. 

This is true for all applicants for service 
with the force, both male and female. 

The policy of the force with respect to hiring 
and which I support without reservation, is 
simply stated in that all applications will 
be received without regard for race, creed, 
color or sex. I did not suggest in my talk 
to COTRA that females or males were superior 
performers in any capacity. 



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Sir, your editorial which appeared in 
response to my remarks, dealt with matters 
which were not a part of my address, and may 
have been read by the public as remarks 
contained in my talk. 

As an example, "the male officer being 
concerned for his personal protection 
because a police woman was backing him up." 
This subject was not a part of my remarks. 

If the public has received an erroneous 
idea of my remarks, I first of all wish to 
apologize for leaving such an impression, 
and secondly to state clearly that my 
remarks were made to explain PRACTICAL 
concerns, and did not refer to ability 
or lack of ability by either sex. 

Floyd M. Schwantz 
Chief of Police" 



As well, on January 9 , 1979, Mr. Black attended 
the Board of Police Commissioners meeting, which was the 
first or second meeting of the Board of Police Commissioners 
that was open to the public. Discussion at the meeting made 
mention that there were some 100 applicants for four posi- 
tions as constables with three women amongst the applicants. 
( Transcript , pp. 68) Mr. Black published an article January 
10, referring to the meeting (Exhibit #12), which reads: 
"OVER 100 APPLICATIONS FOR ^ FORCE POSITIONS" 

Timmins Police Commission has received over 
100 applications, three from women, for the four 
positions open on the Timmins Police Force. 

Police Chief Floyd Schwantz told a public meeting 
of the commission yesterday that four male poten- 
tial candidates have made it through the force's 
grid for determining suitability. Two of the 
potential new constables are city residents, one 
from Red Lake and another being considered is 
now on the Metropolitan Toronto Police Force. 
Authorized strength of the force is 71 and there 
are 67 uniformed members at present. 



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Chief Schwantz outlined for commission members 
Mayor Mike Doody and Wyman Brewer the proce- 
dure an applicant must go through in order to 
make it to the final selection stage. 

He said all applications are reviewed for an 
intial profile of the candidate. The force 
then does a background check on their per- 
sonal suitability, contacting neighbours or 
other persons they are acquainted with as well 
as previous employers. 

Those that make it past that stage are then 
subjected to a personal interview with a 
selection board composed of two staff sergeants 
and two inspectors. After that the candidate 
has a medical checkup. 

The chief told the meeting that the candidate 
now on the Toronto force is "in the wings" 
pending the outcome of an assault charge against 
the individual resulting from an arrest he had 
made . 

He said he had been reassured by the officer's 
superiors that the court case would exonerate 
the officer and prove that the charge against 
him was a "vindictive one". 

The candidates for hiring were to be discussed 
at an in-camera meeting following yesterday's 
public session of the commission." 

Mr. Black impressed me as a competent, conscientious, 
objective reporter and I have no doubt that his news- 
paper articles were accurate. Indeed, Chief Schwantz 
candidly admitted the accuracy of the November 29 article, 
( Exhibit # 6 ) in his detailed cross-examination. ( Transcript 
pp. 219 to 221) 





Mr. Glen Gillis 


, a 


news repor 


te r w 


i th C . 


K 


television 


station in Timmins 


al 


so attended 


the 


r a tepa 


y 


meeting in 


his capacity as a 


rep 


orter. He 


tes ti 


f i ed , 


r 


ferring to 


the notes (Exhibit 


#1 


5 ) he made 


a t th 


e time 





"A. Urn. ...the question was Drought up by a pe 
son as to why there were no woman constables on the force an 
the person said couldn't they be used in various cases in 



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only been in Timmins for six months and he said our lack of 
woman may look discriminatory but my opinion is based on 
practicalities. Most woman do what there husbands want and 
go where they go. Urn. ..then he made a reference what if the 
husband moves after all the training that a woman officer 
might go through he said the Timmins force is the one who 
loses, and he was speaking in terms of time and money spent. 
He also made reference that woman . unlike men get pregnant 
and he said that if they were to come into my office preg- 
nant I would have to send them home. He said unlike other 
jobs. He made reference to the fact that he wouldn't be able 
to send a pregnant woman out on an act of duty. Urn. ...he 
added that since their husbands may work, they will want 
special consideration. However, he said that he does see 
the need for Police woman especially with children. Urn... 
the Chief stressed that he was not anti-female but merely . 
speaking from a practical stand point from the Timmins 
point of view, saying he was Chief of the Timmins force. He 
said it does not make sense to hire woman , and that's pretty 
well the end of the remarks involving the hiring of female 
constables." ( Transcri p t , pp. 79, 80 ) 

He also wrote an article ( Exhibit #13) under 
the heading "Policewomen Mot Practical Chief Maintains" 
published in the November 30, 1979 Toronto Globe and Mail. 
The meeting was also reported in H orthland Today issue of 
January, 1979 ( Exhibi t #14 ) . I have no aoubt that Mr. Gillis 
is also a competent, conscientious, objective reporter, and 
accept his evidence. 

This was Chief Schwantz's first general 
meeting with the public. It was not simply a casual inter- 
view or meeting. Rather, he was laying down for the City 
of Timmins what his views and the hiring policy were, or at 
least, reasonable people would infer that was what he was doing 
Chief Schwantz was setting forth what the recruitment policy 
in fact was at the time of Ms. Hartling's application. 

Ms. Gilda Mahon, an elementary school teacher, 
also testified. As an interested citizen, she wrote a letter 
to the editor ( Exhibi t #16), published in the Timmins Daily 
Press with another letter to Chief Schwantz, critical of his 
position on hiring women as reported in. the newspaper, and 



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seeking reasons for his position. The Chief telephoned her, 
and they had a meeting at the Police Station in December, 1978, 
at which she took notes. (Exhibit #17) She testified: 



A. Alright. I reserved any comment that I had until 
the end that was sort of agreed upon. His first comment 
to me was with reference to maternity and maternity leaves 
and peing pregnant. I nad asked him just likely to Tell 
me why ne felt woman were not suited to police work and 
nis first reason was the fact that tney could get pregnant 
and ne did not feel tnat ne wanted to take the 
resoons i d i I i ty for any problem that might be incurred 
to Tne unborn fetus etc. wni le the woman was sti I I on 
duty, he a.lsc stated that to the best of my recollection 
is that once a woman die have ner children sne would 
want to siay nome, would want week-ends off and would 
cerTainly noT wanT To work shift work particularly 
on cola February nights eTc. his second comment to me 
was that uh... woman wno married woula probably want to 
leave Tne area if tne husband's job took him elsewhere 
and he felf that the Turnover in the station at that 
DoinT was auiTe comfortable and he felt that wiTh 
more woman That tne turnover would be much greater 
although ne didn't nave any sTaTi sties *o Dack it up 
atthat point. ( Transcri or , pp. 114) 



A. Alright. Tne next comment TnaT he made was 
with regards to scheauling vacations to correspond with 
that of their nusoand's; he pointed out tnat in the 
lasT jod thaT he had mom whereever ne came and I can't 
rememper what the Cities name was that he spenta'o"f 
of Time anQ efforT on Trying To geT vacations to 
correspondend for the woman in his office. I assume 
he meant secretarial, that I really don't know, or at 
ieest I can'" rememper wnetner ne meant police woman but 
he said TnaT TnaT would oe guiTe an admi n i sTraT i ve 
hassle, he assumed ThaT The woman who would be 
empiovec would warn vacaTions at the same time as tneir 
nuspand's and The final reason ne gave was Tne ract 
that tricre weren't any wasnrooms or cnangerooms for any 
women that ne would employ as police officers and that 
tnat would be a costly venture to the tax payers and 
tnat nad to oe one of nis considerations. (Transcr i pt , pp . 114, 115) 







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At the conclusion of this unusual interview, 
(with a reversal of roles from that of the usual, for both 
citizen and police officer) she read her notes to him and 
he indicated approval. ( Transcript , pp. 113, 115) 

Mrs. Mahon then put some compelling arguments 

to Chief Schwantz: 

"I pointed out that out of a career say 40 years, 2 years 
or 3 years Dearing children certainly was not a large 
portion of that time and I felt tnat just the fact 
that a woman was a mother didn'T necessarily mean that 
she was going to suddenly expect to not have snift-work 
and that was not exactly a surprise when she hired on 
with the force she would simply have to take shift-work 
like everybody else. Then of course, everyDody would 
ratner De nome with their families on cold February 
nights and certainly not just woman with their cnildren. 
As far as moD i I i tv was concerned I pointed out the fact 
tnat a woman's income was cerrainly a large consideration 
in any economic situation in a marriage ano that because 
he didn't nave anv statistics to rea I I v snow me 
conclusively TnaT woman simply would not last for five 
years to maKe them a good financial risK to tne community. 
1 just didn't fee! that tnat was a good reason for 
not feeling that tney were suited to police work. I 
said tnat it was very nice of him to schedule vacations 
etc. ror tne woman in nis employ where ne workedbefore 
but tnat was sometn i ng ne took on nimself, it was a 
responsibility that ne cnose to take not one that was 
requested, then it was not part of a woman's expectations 
that vacations would De made to suit ner that she 
s i mo I y would have to do it in any other wav that his 
male counterparr wou i c and ne agreed with me and as 
rar as «asn rooms and cnangerooms were concerned i 
questioned him as to whether all of tne police officers 
came into cnange in tne morning or whenever their duty 
was and he said no tnat many did come in uniform and I 
asked if They a I I came DacK to use the washroom and he 
saic no of course not tnat they wou id use whatever 
washrooms Tnat is close by. I also ooinTea out ThaT 
uh... .his sTaTemenT TnaT woman were not suited to police 
worK was uh..Dasea on his own personal opinion and 
tnat a man in his posiTion really didn't nave, I felt, 
the right to say things like ThaT oecause we need a lot 
more role models ror our young women in scnool. Anyway 
ne said tnat ne didn't in any way suggest tnat anyone 
couic not apply to oecome a police officer. Tnat 
application forms were availaDle to anyone in tne 
Community or e i sewnere and I said I agreea with tnaT and 
ne cou i d not uh.. .of course aeny tnat to anyuody out I 
pointed out I used Italians only because I am Italian 



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but I remember saying To him quite distinctly tnat i 
ne_ turned around ana said that all Italians weren't 
suited to police work out tney could apply if they 
wanted that it really was not exactly an invitation 
to Italians to apply and I felt that he was doing tn 
same thinq to woman. he said he didn't realize that 
his statement was bus interpreted, ne didn't uh. 
TnmK rnat it wojIg oe mi s i nTerpreTea ana | 
suggested TnaT it certainly was." (Transcript, pp. , 



7) 



Ms. Mahon testified that Chief Schwantz did 
not disagree with her point that his public statement at the 
ratepayers' meeting was being interpreted as indicating femal 
applicants would not really be considered on their merits. 
Moreover, in his cross-examination during the Inquiry, Chief 
Schwantz agreed with Ms. Mahon 's testimony ( Transcript , pp. 
225) and confirmed that he told Mrs. Mahon the problems he 
perceived pertaining to shift work, staff holidays, and 
washroom facilities if there were female police constables. 
( Transcript , pp. 2^0) From his own evidence, it is clear 
Chief Schwantz had no intention of hiring a woman as a 
police constable at the time he interviewed Ms. Hartling. 



Mr. Wynan Brewer has been Chairman of the Board 
of Police Commissioners since 1976 or 1977 and a Commissioner 
since 1972. ( Transcript , pp. 169) 

He stated that he questioned Chief Schwantz 
and Superintendent Stevens about the Hartling application, 
given the newspaper controversy, and assured himself she was 
not qualified, and in fact had received more than the average 
consideration. It is obvious this conversation with the 



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Chief was not until December, 1978. Mr. Brewer was 
defensive in cross-examination, and obviously had very 
little information about Ms. Hartling. He knew, or 
certainly should have known, that no test was given 
to her. He confirmed in his testimony that there were 
probably vacancies when she applied. Mr. Brewer's 
position was that the Board made no attempt to recruit 
women. Rather, they just recruited constables. One 
cannot take exception to this statement of policy, but 
it, of course, misses the essential point. Whether or 
not there is an affirmative action program is not the issue, 
and indeed, there is no requirement in law that there be 
an affirmative action program in favour of women in the 
hiring of police constables. No one is asking the Board 
to engage in tokenism as feared by Mr. Brewer. The issue 
simply is in hiring constables, are women discriminated 
against as prohibited by the Code ? 



Minutes of the meeting of the Board of Police 
Commissioners of September 18, 1978, were introduced into 
evidence ( Exhi bi t #18) and "Item 12" refers to "Hiring 
Policy", stating (in what Chairman Brewer testified was 
a formal re-statement of existing policy) that the Board 
agreed that each application would be considered on its 
own merits. ( Transcript , pp. 170, 171) Chairman Brewer 
testified that he first heard about Ms. Hartling from 
Mayor Doody, and spoke to the Chief and Superintendent 
Stevens and as a result assured himself "that there was 
no discrimination because of being f em a 1 e . . . ( a n d ) that 



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she was not qualified for the job...." ( Transcript , 
pp. 172, 173). However, he did not really inquire 
into the specifics of the recruitment process with 
respect to Ms. Hartling, but rather just relied upon 
the opinion expressed by Superintendent Stevens and 
Chief Schwantz. ( Tran script , pp. 176) 

Similarly, it was clear from the testi- 
mony of both Chairman Brewer and Mayor Doody that the 
Board of Police Commissioners generally has rubber- 
stamped the recommendations for hiring new constables, 
as made by the Chief. ( Transcrip t , pp. 17y) The 
physical requirements (minimum of 5 feet 8 inches 
height and at least 160 pounds) were kept uniform for 
all apoiicants, although Mr. Brewer asserted these 
requirements were not a "rigid specification". ( Trans - 
cript , pp. 181) Such uniform minimum standards, in 
themselves, have the effect of excluding women in a 
discriminatory fashion, and are, therefore unlawful. 
That is not the issue in the present Inquiry, as Ms. 
Hartling met such minimum standards. However, uniform, 
minimum standards as to height and weight are one 
indicator of a general policy of discriminating against 
female applicants for the position of police constable. 
Chief Schwantz at first asserted that so far as he was 
personally concerned there were no minimum height and 
weight standards (notwithstanding that was Board policy 
( Transcript , pp. 212) but on cross-examination seemed 
to agree there were such standards but exceptions could 
be made. ( Transcript , pp. 2^7) 



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Michael Doody, Mayor of Timmins, from 1977 
to 1980, also testified. As Mayor, he was an e_x officio 
member of the two person Board of Police Commissioners. 
He corroborated Ms. Hartling's testimony, that she had 
come to him in 1978 saying she had applied to the police 
force, was upset, and saying she felt there was a bias 
against her because she was a woman. ( Transcript , pp. 130) 



He subseguently spoke to the Chief about 
her ( Transcript , pp. 153, 154). Mr. Doody testified that 
he believed that the recruitment process included a test 
which preceded any interview. ( T ran script , pp. 134). 



As to the controversy with respect to Chief 
Schwantz's comments at the ratepayers' meeting, Mr. Doody 
testified: 

A. Yes, I would say very candidly that it 
was the feeling of the members of the Police Commission 
that the Chief was speaking on behalf of the Chief and 
not on behalf of the Police Commission. 

Q. Well why did you say that, what lead to that 
conclu sion ? 

A. That I feel that it wasn't the Police 
Commission speaking or any member of the Police 
Commission. The Chief is not a member of the 
Police Commission, he is a person, a resource per- 
son to the Police Commission, I think that we were 
slightly upset over what was said. I think that it 
is the feeling of the Police Commission that should 
the Chief come in and recommend that we hire someone 



and it happen s 


to be a worn 


a 


n th 


a t 


we h 


ire 


to 


be 


tak en 


on the force at 


the time, 


I 


thi 


nk 


tha t 


the 


T 


i mm 


ins 


Police Commi ssi 


on wou Id ce 


r 


tain 


iy 


ha ve 


don 


e 


so . 




(Transcript, pp 


. 142, 143) 
















A. No I 


think afte 


r 


tha 


t p 


a r ti 


cu 1 a 


r 


i n c 


i d en t 


it was made gui 


te clear to 




the 


Chi 


e f t 


hat 


th 


e C 


omm i - 


ssion is the on 


e that sets 




pol i 


c y 


and 


that 


i 


f s 


om eon e 


met the s tandar 


ds that wer 


e 


put 


do 


wn , 


male 





r f 


ema 1 e , 


th-^t wp would h 


p t. hp .liiHnp 




nf t 


hat 


I T 


r ^ n q 




i n 1- 


n n 



V 



- 18 - 



Constable Angus Mortson of the Timmins police 
force also testified as a witness. He was recruited about 
September, 1977 and employed as of January 9, 1978. 
( Transcript , pp. 92, 93) His height, weight, and education 
were all less than Ms. Hartling, ( Transcript pp. 87, 4 3) 
but he was hired as a constable after a 4 5 minute test 
followed by an interview. ( Transcript , pp. 95) Constable 
Mortson was very forthright in his testimony, notwith- 
standing the awkward position he might feel himself in, in 
testifying. 

There was much testimony about other constables 
being hired over the period, and indeed, Chief Schwantz 
testified he was looking for two or three constables in 
August, 1978. ( Transcript , pp. 211) I find as fact that 
there were vacancies to be filled on the force when Ms. 
Hartling applied in August, 1973. 

P.C. Andrew Bennett testified that he was hired 
as a constable September 11, 1978, and that two others were 
hired about the same time, and a further two in January, 
1979. ( Transcript , pp. 123, 124) Unlike Ms. Hartling, he 
too was given a written test before his interview ( Transcript , 
pp. 125, 123). Mayor Doody also confirmed that the Board was 
looking to hire six or seven officers between the fall of 
1973 and early 1979, and confirmed that applicants who met 
the physical and education requirements would be given a test, 
and then the Chief would select the preferred candidates and 
the Board would act on his recommendations. The Board really 
delegated recruitment responsibility to the Chief. 



i 



- 19 - 



Chief Schwantz became Chief of Timmins Police 
Force in May, 197S, with an impressive previous record with 
the Kitchener, Georgetown and Halton Region Police Forces. 
(Transcript, pp. 19*t) 



Chief Schwantz described the recruitment pro- 
cess, saying that all applications as received would be 
acknowledged in writing by Superintendent Stevens or 
Inspector Harris, but somehow, the Hartling application 
and others at the time were not so acknowledged. 
( Transcript , pp. 196, 197) Neither Superintendent Stevens 
nor Inspector Harris testified. He said that he first 
became aware of the Hartling application in response to 
Mayor Doody's inquiry: ( Transcript , pp. 197). Chief 
Schwanz said that he found a number of spelling errors 
in the application, and, hence told Ms. Hartling at 
the subsequent interview that her communication skills 
were inadequate. ( Transcript , pp. 199) He also found 
some of her grades at the "C" level in the Community College 
course to be inadequate in his opinion. ( Transcript , pp. 
200 to 203) However, she achieved at least a "C" (satis- 
factory") in each course, and it was clear on cross- 
examination that he did not really spend much time con- 
sidering, or even understood, her grades. ( Transcript , 
pp. 231) 

Chief Schwantz also spoke to Ms. Hartling about 
some of the negative aspects of police work - "shiftwork, 
weekend work, stat-holiday work. . ." ( Tran script , pp. 239 ) 
at the time of the interview. 



J 



s 



- 20 - 



Chief Schwantz trie 
at the ratepayers meeting as b 
dollars and "practical conside 
2 21, Exhibit // ? , supra ) and in 
were his personal views rather 
pp. 2 10, 222, 22*0'. 

However, he acknowi 
the meeting in his capacity as 
his view as being that "from a 
women should not be on the pol 
pp. 222^ 



d to rationalize his remarks 
eing concerned about tax 
rations" ( Transcript , pp. 209, 
any event emphasized they 
than Board policy. ( Transcript , 

edged that he was appearing at 
Chief of Police, and stated 
practical point of view" 

ice force". ( Transcript , 



Chief Schwantz asserted correctly that Ms. Hartling 
received consideration that no one else did, ( Transcript , 
pp. 2^7, 2 ^ S ) because she was interviewed by the Chief of 
Police, but in the circumstances (she being a female), in 
my view, this was a disadvantage rather than an advantage. 

Chairman Brewer maintained that Chief Schwantz 's 
comments at the ratepayers' meeting were the Chief's own 
personal comments, and not Board policy. ( Transcript , pp. 
155) Even if they did not represent Board policy, given 
the Board's knowledge of the Chief's views, the recruitment 
process was fraught with peril for female applicants, particu- 
larly when the Board relied simply upon the Chief's recommenda 
tion in hiring. Chairman Brewer's inquiry of the Chief 
with respect to the Chief's rejection of the Hartling 
application came in the context of the newspaper controversy, 
and set he did not really press the Chief for details, or 



r 



» 



* 



- 21 - 



investigate at all (for example, he did not personally 
examine Ms. Hartling's application) ( Transcript, pp. 186, 
187, 190). 

The Board of Police Commissioners knew, or 
certainly should have known if they were exercising 
their duties with the diligence of reasonable persons in 
their positions, that there was a problem in the actual 
recruitment process, whatever the formal, stated policy 
was. They knew, or should have known, that the recruit- 
ment process in actuality, as administered by Chief 
Schwantz, was discriminatory against women applicants. 
The Commissioners did not try to deal effectively with 
the problem. There was no rigorous investigation of the 
true situation in the face of the newspaper commentary. 
The Commissioners really deferred to the Chief's judge- 
ment, knowing the Chief did not want women constables. 
There was perfunctory, minimal supervision of the Chief. 
Whether Mr. Brewer agreed or not with the Chief (and I 
think, considering Mr. Doody's evidence that Mr. Doody 
disagreed with the Chief's discriminatory recruitment 
practices) the Board did not do anything at all to 
rectify the recruitment process. The Board tried to 
insulate itself from criticism, as evidenced by the 
"Hiring Policy" resolution ( Exhibit #18), but i t chose 
not to deal effectively with the problem, knowing there 
was a problem. 



- 22 - 



Chief Schwantz 
conscientious, candid poli 
what he thinks best in ach 
efficient police force for 



is undoubtedly a polite, 
ce officer who wants to do 
ieving a competent and 
T imm i n s . 



Chief Schwantz tried to rationalize his 
comments at the meeting with the ratepayers as empha- 
sizing that he was concerned about the practical problems 
with respect to women constables. Undoubtedly, it was 
his honesty at the November 28 meeting that has caused 
him his problems. One may well not agree with his views, 
but cannot criticize his right to hold them, even per- 
haps to express them as a citizen, but he cannot act on 
those views as Police Chief in contravention of the Code . 
It is not enough for the Chief to assert that women have 
equal opportunity to apply, as the Code requires that 
females (as well as males) have their applications truly 
considered on the merits, and not arbitrarily on the 
basis of their sex. 

Chief Schwantz assailed Ms. Hartling's communi 
cation skills, given her spelling errors. Certainly her 
spelling in the application was attrocious. Even the 
name of her high school was misspelled. One can only 
speculate as to whether the sad state of Ms. Hartling's 
spelling was a reflection upon her ability, or (as many 
parents would undoubtedly assert) the state of the public 
school educational system. However, considering all the 
evidence, I have no doubt that Chief Schwantz was rationa 
lizing the rejection of Ms. Hartling as a prospective 



- 23 - 

police constable when he asserted it was on the basis 
of her communication skills. He rejected her, and I so 
find on the evidence, simply because she was a female. 
Her credentials on paper, coupled with his need at the time 
for officers, were such that he would have had the usual 
test administered to her before the interview if she 
had been a male applicant. The interview was really to 
placate the mayor, and the rejection on the basis of 
lack of communication skills was a facile, if plausible, 
means of dealing with the problem then confronted by the 
application. It may well be that Ms. Hartling would 
not do satisfactorily on the test, or even that her 
spelling problem (or obvious indifference in completing 
an application without at least having her spelling 
checked so as to put her application in the most favourable 
light) would be a factor in her ultimate rejection. But 
this communication problem was simply an excuse employed 
by Chief Schwantz, the real reason for her rejection 
being that she was a female applicant. 



A subsidiary reason for her rejection as a 
candidate was also put forward by Chief Schwantz - that 
her reasons for termination of previous employment as 
set forth in the application were guestionable. However, 
while her application is not all that clear on this point, 
in my view, and I so find, Chief Schwantz was really 
similarly using this reason for rejection as an excuse. 
In actuality, and I so find, he was rejecting her simply 
because she was a female. Even if there had been 
another reason for rejecting Ms. Hartling, the juris- 
prudence is clear that a Complaintant is successful in 



* 



t 



establishing a violation of the Code if one of the reasons 



for dismissal was a prohibited ground. The prohibited 
basis for dismissal must be a proximate cause but may be 
present with other proximate causes. ^ 



Regina v. Bushnell (1974), 4 O.R. (2d) 233 (C.A.) I con- 
sidered the law on this point in the recent decision, 
Mrs. Pearlina Reid v. Russelsteel Limited (May 19, 19 31). 

In the Bu s hn e 1 1 case, an employee was dismissed for a 
number of reasons, only one of which was a prohibited 
ground under s. 110(3) of the Canada Labour Code , R . S . C . 
1970, c. L-l, i.e. membership in a trade union. The 
Ontario Court of Appeal upheld the judgement of Hughes, 
J. to the effect that "union membership must be a proxi- 
mate cause of dismissal, but it may be present with other 
proximate causes", (p. 290). In other words, regardless 
of other justifiable motives for dismissal, when the 
prohibited ground of union membership was present, s. 110 
(3) of the Canada Labour Code applied. This decision 
has been cited with approval in other labour relations 
decisions, for example, Re Sheehan and Upper Lakes 
Shipping Ltd. 31 D.L.R. (3d) 20 3: Pipher v . Atlantic Bus 
Lines Inc. (1930) O.L.R.B. Rep. 154. " "~~ 

By analogy, the Bu s hn el 1 decision has been considered in 
some decisions of the Ontario Human Rights Commission. 
In toe case of Heather Hawkes v . Brown's Ornamental Iron 
Works (Dec. 12, 1977), Prof. D. A. Soberman considered 
the situation where an employee was dismissed partly on 
grounds of age (a prohibited ground under the On ta r i o 
Human Rights Code ), and partly on other grounds. Prof. 
Soberman followed Bushnell and decided that if "age were 
present in the mind" of the employer, then the dismissal 
of Mrs. Hawkes was contrary to the Code . 

That reasoning has been adopted, citing Bu s hn e 1 1 as autho- 
rity, in several subseguent decisions in respect of the 
Ontario Human Rights Code. In Sheila Robertson v. Metro - 
politan Investigation Security Ltd. (Aug. 10, 1979), I 
cited with approval Prof. Soberman's discussion of the 
Bushnell decision in Hawkes v. Brown . Similarly, in 
Jamie Bone v. Hamilton TiqerCats (Aug. 16, 1979), Prof. 
John McCamus cited both Bu s h n e 1 1 and Re Sheehan and Upper 
Lakes Shipping Ltd . , supra , in deciding that where pro- 
hibited grounds are "motivating factors", then a violation 
of the Code has occurred, even though a number of other 
factors were also present. 

In two more recent decisions, Prof. Soberman has cited 
Bu s hn e 1 1 as the "leading decision" on the issue of Code 
violations in the presence of factors not covered by the 
Code : Skeete and Samuel v. Joivn Jewellrv Ltd. (June 23, 
19 30 ); Hettv Henury v. L .C . 3 .0 . (Aug. 5, 1930 ). 

In summary, then, Bushnel 1 holds that where one prohibited 
ground is present, even amongst other non -prohi bi ted grounds 
a violation has occurred. This has been approved in other 
labour relations decisions, and has been applied by analogy 
in decisions of Boards of Inquiry under the Ontario Human 
Riqhts Code. — 1 



1 



- 25 - 



There has obviously been some change in the 
hiring practices of Chief Schwantz since 1979, given the news- 
paper controversy ( Exhibits ft 6 and #9) and Hartling application. 



The application of another female was received in 
the summer of 1930, and was accepted in December 1930 and 
this person became the first female officer with the approxi- 
mately 70 member Timmins police force. Moreover, physical 
changes to the police station were commenced in the summer 
of 1980 in anticipation, as Chief Schwantz put it, that "good 
( female ) applicants would come forth." Undoubtedly, the 
mere fact of this Complaint has had a salutary effect in bringin 
the recruitment and hiring practice of the Timmins police force 
closer to the mainstream of police forces in Ontario, and 
closer to conformity with the Code . There was some evidence 
about the employment practice and procedures of other forces. 

Deputy Chief Hubert Guillet of the Sudbury police 
force testified. His force has some 216 constables of whom 
eight are females. ( Transcript , pp. 4-7, 43) He testified as 
to the Sudbury recruitment requirements and procedures. 
(Exhibit #11 ) . 



When Sudbury advertises for new recruits, the 
different height and weight requirements for female appli- 
cants are included in the advertisement. Basic requirements 
must be met as to age, height, weight and education. Assuming 
these standards are met, four basic tests ( E x h i b i t #11) are 
given as to physical and mental ability, and investigation 



* 



- 26 - 



is made, and assuming the appli 
imposed by such tests, an inter 
pp. 52,53). This is the first 
screened by a subjective evalua 
That is, to that point, applica 
if they do not meet the objecti 
process of recruiting seems typ 
municipal governments such as r 
( Transcript , pp. 59). However, 
testified that when he was with 
(population about 22,000) polic 
basic aptitude test was first a 
the position of police officer, 
one obtained through the Chiefs 
pp. 62). Sudbury has a populat 
and Timmins about ^4-, 000. 



cant meets the standards 
view is given. ( Tran script , 
point at which applicants are 
tion on the part of the force, 
nts are screened out only 
ve standards. This elaborate 
ical of forces of major 
egional municipalities. 
Deputy Chief Guillet also 
the smaller town of McKinnon 
e force from 1954 to 19 60, a 
dministered to applicants for 
the test being a standard 
Association. ( Transcript , 
ion of about 160,000 people, 



Inspector John Irwin of District Headquarters, 
Ontario Provincial Police, at South Porcupine, six miles 
from Timmins, also testified. Of the 136 uniformed per- 
sonnel in the South Porcupine District, at present two are 
females, although in 197 S there were three. He described 
the 0. P. P. recruitment process ( Exhibit #19) as being, 
first, the completion of application and medical forms, secon 
a test (including a consideration of "spelling"), third, an 
interview, followed by a screening, fourth, a review of the 
test papers by a psychological consultant, and fifth, a final 
interview. ( Transcript pp. 156, 157). The City of Timmins 
Board of Police Commissioners would be well advised to do a 



- 2S - 



practices, and therefore, the Board of Police Commissioners 
is itself in breach of paragraphs Ml) (a) and (b) of the Code . 

Chief Schwantz argued that his views were expressed 
without any malicious intent toward females, and I have no 
doubt of this. I have no doubt that he expressed the views 
he did because he honestly held them, and believes they are 
in the best interests of female applicants, the police force, 
and the City of Timmins. He is a frank and conscientious police 
chief. 



As I stated in Sheila Robertson v . Metropolitan 

Investigation Security (Canada) Limited (^ug. 11, 1979 at p. 30), 

the legal principles in a 'discrimination on the basis of sex' 

Inquiry amount to the following propositions: 

First, the Complainant must show a prima facie case of 
discrimination as a result of the Respondent's employ- 
ment or recruitment standards, requirements or condi- 
tions. Second, once it is shown that the employment 
or recruitment standards, requirements or conditions 
exclude a protected group under the human rights 
legislation, the onus then falls upon the Respondent 
to show that the standards, requirements, or conditions 
in question are job-related and that their absence 
would impose undue hardship on the conduct of the 
Respondent's business. Third, if the Respondent fails 
to discharge the onus, the requirements are considered 
discriminatory and illegal. 

The Chief of Police rejected Ms. Hartling simply 

because he did not wish to have female police constables, as 

such positions have traditionally been occupied by males. This 

is an unlawful action, given the requirements of paragraphs 

A- ( 1 ) ( a ) and (b) of the Code . It is not open for the Chief, an 

employer, to decide that a prospective female employee should 

not take up an employment opportunity for which she is as 



- 27 - 



general review of the recruitment and hiring procedures of 
other forces, such as Sudbury and the 0. P. P., with a view 
to reforming and improving upon that practised by the Timmins 
police force. 



Summary of Findings of Fact and Application of 
Relevant Law 

For the reasons given, I find the two Respondents, 
the Board of Commissioners of Police, City of Timmins, and 
Chief Floyd Schwantz were in breach of both paragraphs Ml)(a) 
and A- ( 1 ) ( b ) of the Ontario Human Rights Code . The individual 
Respondent, Chief Schwantz, refused to refer or recruit the 
Complainant, Kathy Hartling, for employment as a police con- 
stable, contrary to paragraph £ f(l)(a) of the Code and refused 
to employ the Complainant, Kathy Hartling, as a police con- 
stable contrary to paragraph 4- ( 1 ) ( b ) of the Code , because she 
is a female person. The Respondent, the Board of Commissioners 
of Police, City of Timmins, is also in breach of these pro- 
visions of the Code for two reasons. First, Chief Schwantz 
was acting in the course of, and within the scope of, his 
employment with the Board in refusing to refer or to recruit 
for employment, or to employ the Complainant. He was acting 
on behalf of the Board in recruiting and hiring and the Board 
is therefore responsible for his breach of the Code . The Board 
did not really set up, or enforce, a rigorous system for recruit- 
ment with objective standards, but rather left hiring largely 
to the subjective evaluation of the Chief. Secondly, the 
Board knew, or most certainly should have known if it had 
performed its responsibilities with reasonable diligence, that 
Chief Schwantz was in breach of the Code in his recruitment 



f 



- 29 



capable as a male, si 
for the position open 
applicant's sex. It 
the suitability of th 
basis of gender in ca 



mpiy because the emo 
This is discrimin 
is for the applicant 
e job, when there is 
pability in performa 



loyer prefers a maLe 
ation because of the 
alone to decide upon 
no difference on a 
nee of the task. 



Chief Schwantz's position amounted to saying that 
because of his own values, a female was not as suitable as a 
male in the position of police constable. Once a prima facie 
case of discrimination is made out, to except himself from the 
impact of the Code, a respondent has the onus upon him to prove 
that discrimination on the basis of sex is a " bona fide occupa- 
tional qualification and requirement for the position of employ- 
ment" (s. 't{&) of the Code ). This was not really even attempted 
in this hearing, and would undoubtedly have been unsuccessful 
in any event, as the evidence of both eminent social scientists 
and experienced, professional police officers on the subject is 
clear that a female is as capable as a male, all else being 
equal, in performing the tasks required of a police constable, 
(See the evidence of Dr. Joyce Sichel and former Toronto Police 
Chief Harold Adamson in Colfer v. Ottawa Board of Commissioners 



of Police and Ottawa Police Chief Leo 3. Sequin (Jan. 12, 1979 
at pp . 75 to 84) . 



The legal system has not always treated women in 
the same way men have been treated, sometimes to their advantage, 
sometimes to their detriment. Women have been required for too 
long a time to measure up to the prevailing standards of the 
male stereotype view as to what constitutes 'femininity'. The 
legislature of Ontario has spoken clearly in enacting the 



- 



- 



30 - 



Ontario Human Rights Code , as amended. An employer cannot 
refuse a woman consideration for employment simply because 
she is a female and the employer does not view the position 
as suitable for a female, when the job can be done just as 
well by a female person as by a male person. The law and the 
underlying values, have evolved quickly in a rapidly changing 
world, and the Respondents are obliged to recognize this, 
whatever the views and values of the Chief of Police and 
members of the Board of Police Commissioners. 

Section 1 ^ C of the Code provides that after 

hearing a complaint a board shall decide whether or not any 

party has contravened the Code , and 

"(b) may order any party who has 
contravened this Act to do 
any act or thing that, in 
the opinion of the board, 
constitutes full compliance 
with such provisions or to 
make compensation therefor." 



Given my finding of discrimination by the 
Respondents because of the Complainant's sex, I shall now 
review previous 'discrimination on the basis of sex' cases as 
to the remedies provided. 



Remedies in Previous Discrimination on the 
Basis of Sex Cases. 

The first sex discrimination case brought in 
Ontario appears to have been a complaint by female hospital 
aides against the Ontario Department of Health: Filia traul t v. 
Ontario Department of Health (1967). The complainants alleged 



V 



( 



- 31 - 

that male hospital employees were paid more for essentially 
the same duties as female aides carried out. 

3. C. Anderson, 3. found that, for certain indivi- 
duals, the claim had been made out, and thus a violation of 
s. 5 of the Ontario Human Rights Code S.O. 1961-62, c. 93 
had occurred. 

Anderson, 3. recommended that in the future female 
aides should be paid the same salary as male attendants where 
their duties are the same. No damages were awarded to the 
compl ainan ts . 

A similar claim was dealt with the following 
year by Prof, (now Mr. Justice) Horace Krever: Mildred Fortey 
v. Middlesex Creamery Ltd . (3une 22, 1963). Mrs. Fortey worked 
as an egg-grader for the respondent company. Her complaint 
alleged that although she performed identical duties to male 
workers and had more experience, she was paid a lower wage 
than males were. Prof. Krever found that s. 5(1) of the 
Ontario Human Rights Code (1961-62) had been breached by 
the respondent company. He ordered that the respondent pay 
to Mrs. Fortey a wage equal to that paid to male workers, 
retroactive to the time when the duties performed by male 
and female employees in the creamery became identical. 

In Be tty- Anne Shack v. London Oriv-Ur-Self Ltd . 
(June 7th, 1974), the complainant alleged that the respondent 
company refused to give her an interview for a job vacancy 
because of her sex. The Board of Inquiry (Prof. Sidney Lederman) 
found that indeed the respondents had breached s. b of the 
Ontario Human Rights Code R.S.O. 1970, c. 313. 



In deciding the matter of compensation, the Board 
found that even if the complainant had been interviewed, she 
would not have been hired. The respondent was looking for a 
permanent employee, whereas the complainant was prepared to 
work only for the summer. 



The complainant was awarded $100.00 as compen- 
sation for the psychological injury she suffered in being 
discriminated against. The respondent was also ordered to sen 
a letter of assurance to the Ontario Human Rights Commission 
of compliance with the Code . Further, the respondent was 
ordered to give notice to the Commission of any employment 
opportunities it had to offer, prior to public advertisement. 

In one of only a few cases in which sexual dis- 
crimination has been found to have occurred against a male, 
a complainant was not permitted to apply for a job as a 
personnel manager since that position was normally held by a 
woman: Kerry Segrave v. Zeller's Ltd . (Sept. 22, 1975). 



The Board of Inguiry ordered the respondent to 
treat men and women egually, and to amend its discriminatory 
interview materials, according to the scrutiny of the 
Ontario Human Rights Commission. 



The complainant was granted a new interview by 
an independent personnel agency. Were he to be successful in 
the interview, the respondent would be obliged to hire the 
complainant and pay him compensation in the amount of $1250.00 
for missed wages. A further $75.00 was ordered to be paid to 



- 33 - 



the complainant as general damages for personal distress and 
humiliation . 



In Wm . Boyd v. Mar-Su Interior Decorators Ltd . 

(Feb. 2 2, 197 8), a male was likewise found to have been 

discriminated against on the basis of sex. The complainant 

was denied the opportunity of applying for a position hanging 
drapes for the respondent company. 



The Board of Inguiry (Prof. R. S. MacKay) ordered 
the respondent to write a letter of assurance to the Ontario 
Human Rights Commission of its compliance with the Code , and 
to give the Commission notice of its employment openings for 
one year. Further, the respondent was ordered to give access 
to Commission officers to inspect the respondent's premises, 
and to post a notice of its compliance with the Code . 

The complainant was awarded $100.00 as general 
damages for the "cavalier treatment" that he received. Prof. 
MacKay refused, however, to grant damages for loss of employ- 
ment, as such an award would be "too speculative". 



The case of Ann Colfer v. Ottawa Police Commission 
( 3 a n . 12, 1979) involved the application of height and weight 
standards for police constables to female applicants. There, 
I found that the height and weight requirements of the Ottawa 
Police Commission had the effect of excluding virtually all 
women from employment as police officers. 



> 



- 3<+ - 



Rather than award damages to Ms. Colfer, I found 
that the best remedy was to order the respondents to comply 
with the Code in general, and in particular, to permit the 
complainant's application to be properly considered. 



Thus, the respondent was ordered to consider 
Ms. Colfer's application for employment without regard to the 
height and weight requirements previously adhered to. If trie 
complainant were to be successful in her application, her name 
was to go ahead of others on the waiting list. The respondent 
was ordered to abandon its height and weight requirements, 
or to amend them by establishing different minimum height 
and weight requirements for male and female applicants such 
that men and women would receive equality of creatmen. t and 
opportunity for employment.. 

In Kim Ma qui re v. Orchard Park Tavern (July 2 3, 1979 ), 

the respondent was found to have breached the Code by denying 

service to the complainant in a "Men Only" section of the tavern. 

The Board (Prof. D. A. Soberman) stated: 

Her (the complainant's) anger and annoyance seemed 
less concerned with the affront to herself per- 
sonally than with women's rights more generally... 
Even so, it is important that a citizen who is 
aggrieved through interference with her human 
rights by the laws of Ontario be compensated 
appropriately. (pp. 9-10) 

Prof. Soberman wen t on to order the respondent to 

pay $100.00 to the complainant. The amount was a "modest" one, 

since no substantial injury was suffered by the complainant. 



- 35 - 



The respondent was further ordered to send a 
letter to the Ontario Human Rights Commission undertaking 
to comply with the Code , to post a notice of compliance 
with the Code in a prominent place, and to permit inspection 
by the Commission of the respondent's premises. 

In an employment situation, a complainant 
was not considered a candidate for a job as a security guard 
because of her sex: Sheila Robertson v. Metropoli tan 
Investigation Security (Aug. 10, 1979). There, I found that 
a breach of the Code had indeed occurred and ordered that 
the respondent comply in the future with the Code . Such 
compliance was to be made evident in a letter of apology to 
the complainant, and in a letter of assurance of compliance 
to the Ontario Human Rights Commission. By way of compen- 
sation, I awarded $750.00 as general damages for the 
humiliation and pain suffered by the complainant. 

In Betty Hendry v. Liquor Control Board of Ontario 
(Aug. 5, 19S0), the complainant had been hired as a temporary 
part-time worker in a liquor store. She eventually was 
terminated, one of the grounds for which was her sex. As 
such, the Board (Prof. Soberman) found that a breach of 
s. A- ( 1 ) ( b ) of the Code had occurred. 

The Board also found that the respondent had not 
seriously considered the complainant for full-time employment 
because of her sex. Prof. Soberman awarded Ms. Hendry $2,2 66. ^ A- 
as compensation for wages lost as a result of her termination 
as a part-time employee. 



- 36 - 



With respect to the application for full-time employment, 
Prof. Soberman declined under the circumstances to order the 
L.C.B.O. to hire the complainant since there was no assurance 
that she would have been hired had her application been 
properly considered. Rather, he awarded the complainant 
$3,000.00 in general damages: 



As the solace available in these circumstances, 
both to make it clear to Ms. Hendry that her 
unfair treatment is recognized by this Board 
and to the L.C.B.O. that it must take very 
seriously the harm done by failure to abide 
by the Code , I would award Ms. Hendry the 
additional sum of $S,000.00 as general compen- 
sation. 



The Board further ordered that the L.C.B.O. post 
Human Rights cards in all of its stores; that the L.C.B.O. take 
steps to reduce the imbalance between men and women employees; 
that the L.C.B.O. submit information to the Commission such 
that the L.C.B.O. 's employment practices may be monitored for 
one year; and that the L.C.B.O. send a letter of apology to the 
complainant. 



In Elizabeth Cinku s 
19 3 0) the complainant was not 
because of her sex. Prof. Ian 
s. A- of the Code had occurred. 



v. Diamond Restaurant (Oct. 23, 
considered for a job as a chef 
Hunter found that a breach of 



With respect to the matter of compensation, Prof. 

Hunter stated: 

Insofar as possible, the order of the Board 
should attempt to put the complainant in 
the position she would have been in but for 
the illegal discriminatory act. 



- 37 - 



Since M r s . Cinkus was unemployed for four months, she 
could be compensated for the salary lost during that time. 
However, the evidence showed that even if she had been hired, 
she would have been let go after five weeks on the return of 
the regular chef. As such, the Board ordered the respondent 
to pay $1,200.00 to the complainant for lost wages for those 
five weeks only. 

Citing the Betty- Ann Shack case, Prof. Hunter also 
permitted an award of general damages: $150.00 for "injury 
to dignity". With respect to the usual administrative 
remedies such as a letter of assurance to the Commission, the 
posting of Commission cards, and notification of employment 
vacancies, Prof. Hunter stated: "... I decline to include any 
of these terms since I regard them all as offensive to the 
respondent's individual liberty" (p. 10). He merely ordered 
that the respondent notify the Chairman of the Commission when 
compliance had been effected. 

There are several helpful British Columbia case 
dealing with sexual discrimination and the remedies f 1 
therefrom . 

I n Jean Tharp v . Lornex Mining (Sept. IS, 1975) the 
complainant had been denied accommodation at her work site, 
whereas males in a like position were afforded such accommoda- 
tion. She was subseguently given accommodation at a cost, 
but male employees were given free housing. Further, her 
accommodation was unsatisfactory in that she had to share 
facilities wi-th male no - workers. 



s 

owing 



- 38 - 

A three person Board of Inquiry found that there 
had been a breach of s. 3(1) of the B. C. Human Rights Code 
R.S.B.C. 1979, c. 136. The Board, under s. 17(2)(c) of the 
Code , found that it may award aggravated damages where the 
person contravening the Code did so "knowingly or with a wanton 
disregard" and if "the person discriminated against suffered 
aggravated damages in respect of her feelings or self-respect" 
(p. 15). Here, the complainant was awarded $250.00 in general 
damages, and $263.50 in special damages for the expenses she 
incurred in seeking alternative accommodation. 

I n Diane Borho v . Atco Lumber (Apr. 30, 1976), 
the complainant had applied for the position of fork-lift 
driver at the respondent company. She was not given the position 
The Board of Inquiry found that the complainant had been given 
a test of her ability to operate a fork-lift without prior 
warning, and that the respondent generally did not take the 
complainant's application seriously because of her sex. 

Since the complainant did not have the requisite 
skills to be hired, and the respondent was under no obligation 
to train her, the Board awarded her no general damages. Rather, 
the Board ordered the respondent to compensate the complainant 
for her expenses and lost wages in bringing the claim, and to 
treat male and female applicants alike in the future. 

Where a complainant was found to have been dis- 
missed because she was pregnant, a Board of Inquiry held that 
a breach of the B.C. Human Rights Code had occurred: H . W . v . 
Riviera Reservations (July 22, 1976). 



r 



• 



- 39 - 



Even though the complainant's incompetency was 
also a reason for the dismissal, it was found that pregnancy 
was the "effective cause". The Board held that pregnancy is 
not a "reasonable cause" for discrimination under s. 3 of 
the Code . 

After the complainant was dismissed, she was able 

to find another job immediately, but it lasted only six weeks. 

The Board decided that the complainant was obliged to mitigate 

her losses, and that her misfortune in losing her other job 

shouldn't be borne by the respondent: 

Where the employee demonstrates that he can 
obtain no employment at all subsequent to 
wrongful dismissal, the employer is liable 
only for a reasonable period of search (p. 10). 

The Board awarded the complainant $^0.00 in 

damages to cover her costs of attending the hearing. The 

Board also ordered the respondent to cease its contravention 

of the Code. 



In Mae Loraine Warren v. Creditel Ltd . (Sept., 1976) 
the complainant was fired after being hospitalized for a serious 
operation. The male employees who replaced her in the collection 
sales office were paid at a higher rate than she was paid. 



The Board found that a breach of s. 6(1) of the 
Code had occurred in that the respondents had paid the female 
complainant a lesser wage than male workers in the same position. 
Further, a breach of s. 8(1) of the Code had occurred since the 
complainant had been dismissed without reasonable cause i.e. on 
grounds of sex. 



-40- 

The Board ordered that the respondent pay the 
complainant an increased wage retroactive to 10 days prior to 
her dismissal in lieu of having received notice thereof. 
Further, the Board awarded the complainant $1,000.00 damages 
for "loss of personal reputation and self-esteem" (p. ^). 



Where a Board of Inquiry found that female police 
clerks were being paid less than male gua rd/ di spa tche rs for 
similar duties, it ordered the respondent to cease contra- 
vening the Code (s. 6), and to pay the appropriate difference 
in salary to the complainants: Da vi es v. District of Abbotsford 
(Feb. 13, 1977). 



In Jane Gawne v. Chapman and Associates (Feb. 12, 
1979), the complainant alleged that the respondent failed to 
hire her as a chainperson for survey work because of her sex. 
The 3oard of Inquiry (Beverly McLachlin) found that the res- 
pondent had discriminated against the complainant without 
reasonable cause. The Board ordered payment of $230.00 to the 
complainant, which sum represented the equivalent of 10 days 
wages had she been hired for the position. The complainant was 
also awarded $500.00 in respect of her costs. 



In Janice Lynn Foster v. B.C. Forest Products (Apr. 
17, 1979) the complainant applied for a labouring job at the 
respondent's mill. Even though there were open positions, the 
complainant was not hired. 



The Board (Prof. James MacPherson) found that the 
complainant was not hired because of her height: she was 5 feet 
tall. Prof. MacPherson stated that under the circumstances, 



f 



discrimination on the basis of the complainant's size was 
not reasonable. Hence, a breach of s. 8 of the Code had 
occurred. 



Further, citing the Ontario decision of Col f er , 
supra , the Board found that the respondent's height and weight 
requirements had the effect of discriminating against women. 
The respondent generally gave preference to persons 5 ft. 6 in. 
and 1^0 lbs., or more, and thus, men had an employment advantage 
over women . 

Prof. MacPherson ordered the respondent to cease 
its discrimination. With respect to the individual complainant, 
the Board did not order that any damages be paid. Since the 
respondent had a very high turnover of employees, it was 
difficult to tell how long the complainant v\ould have remained 
at the job had she been hired. Thus, the respondent was ordered 
merely to require the employer to hire the complainant as a full- 
time employee. Prof. MacPherson ' s decision was upheld on appeal 
to the Supreme Court of British Columbia (Oct. 9, 1979). 

Several recent sex discrimination cases have been 
decided in Alberta. 

In Ga r e s v. Royal Alexandra Hospital (Sept. 27, 19 7*0 
female nurses' aides at the respondent hospital alleged that 
they were paid less for work similar to that carried out by male 
orderlies. The wages for the male orderlies and the female 
aides were negotiated by separate unions. The Board (Prof. 
Frederick Laux) rejected though, the argument that differing 
bargaining strengths of the respective unions made the wage 
differential legitimate: 



-42- 



Bargaining strength, whether brought 
about by market conditions, collective 
bargaining process or otherwise is 
not a factor. It it were, the whole 
purpose of section 5 would be defeated 
because females simply have not had 
the bargaining strength to compete 
with males in the struggle for the 
financial fruits of their labour. 
Section 5 is designed to accomplish 
the very thing that females have been 
unable to do at the bargaining table, 
(p. 34). 

Thus, a breach of section 5 of the Individual Rights Protection 
Act. A. S. 1972, c. 2 was found to have occurred. 



Prof. Laux ordered the respondent to increase the 
nurses aides' salaries retroactive to the most recent collective 
agreement. On appeal, this decision was upheld, although the 
date of retroactivity was altered: (1976), 67 D.L.R. (3d) 635. 

Where a female janitor was paid $i.90/hr. and a male 
janitor was paid $2.50/hr. for the same work, a Board of Inquiry 
(Mary McCormick He therington ) recommended that the complainant 
receive a retroactive pay increase to the date of her employment: 
Linda Lowe v. Scot Young Ltd . (Sept. 15, 1975). The complainant 
also was awarded the amount of her expense in bringing the claim. 

In a case similar to the Ga r e s case, a complaint 

was brought on behalf of nurses' aides alleging discrimination 

in being paid a wage lower than male orderlies: Civil Service 

Associa tion v . Foothills General Hospital (June 30, 1977). 

The Board (Mr. John Hill) found that indeed the nurses' aides 

performed work substantially the same as the orderlies and so a 
violation of s. 20 of the Individual Rights Protection Act 
had occu rred . 



- k3 - 



The Board awarded the complainants a pay increase 
retroactive to the date of the complaint, plus interest. 

In Shandrowski v. Alberta Motor Association 
Insurance Ltd . (Dec. 29, 1973), complaints were lodged 
by various individuals against their respective insurance 
companies. The nature of the complaints was that an insured's 
premiums would be lower if he were female, or alternatively, 
that a holder of an annuity would receive a greater amount if 
she were male. 



The Board of Inquiry (Mr. Frank D. Jones, Q.C) 
found that these insurance practices in fact amounted to 
discrimination on the basis of sex. N o monetary compensation 
was awarded to the complainants though. Rather, Mr. Jones 
recommended that an inquiry be held to amend the provisions 
of the Alberta Insurance Act R.S.A. 1970, c. 157. 





In 


a case where a female cabinet m 


ak 


er 


w 


as pa 


id 


le 


ss than male 


employees doing the same work, 


a 


Boa 


r 


d of 




In 


qu i r y r ecomm 


ended that the complainant recei 


ve 


a 


r 


e troa 


c ti ve 


pa 


y increase: 


My Lipton v. Sava Furniture ( 3 u 


iy 


11 


j 


1979 


) . 


Th 


e Board (Mr. 


R. T. G. McBain Q. C.) further 


o r 


d e r 


e 


d tha 


t the 


re 


spondent cea 


se its discriminatory practices. 













There are a number of cases involving sexual 
discrimination decided by Boards of Inquiry in Saskatchewan. 
Many of the decisions concern situations where female workers 
were paid less than male workers. 



* 



- 44 - 



I n Department of Labour v . University of Regina 
(Sept. S, 1975), it was found that female cleaners were paid 
less than male caretakers for similar work. The Board of Inquiry 
(Judge Tillie Taylor) ordered the respondents to pay the 
differential back pay owed to the complainants, and to continue 
to pay female cleaners the same rate as male caretakers. This 
decision was upheld on appeal to the Court of Queen's Bench, 
October 28, 1975. 

Similarly, in Department of Labour v. Yo r k to n 
Regional High School (March 30, 1976) a breach of s. 41(1) 
of the Saskatchewan Labour Standards Act S.S. 1969, c. 24 
was found to have occurred where female cleaners were oaid 
less than a male caretaker. The duties performed by the 
cleaners was found to be "similar work performed under similar 
working conditions in the same establishment, the performance 
of which requires similar skill, effort and responsibility" 
(p. 6). 

The Board (Taylor, J.) ordered the respondent 
to pay a retroactive wage increase to the complainants, from 
the date of the hiring of the male caretaker. 

In Gail Oliver v. Saskatchewan Department of 
Highways (Nov. 5, 1976), it was found that the respondent failed 
to properly consider the complainant's application for a 
position as a M aintenance Worker because of her sex. 



- complainant 



The Board (Judge Tillie Taylor) ordered that the 
be given an opportunity to apply for the first 



- ^5 - 



available position. Also, it was ordered that the respondent 
notify both the complainant and the Saskatchewan Human Rights 
Commission of employment openings for a one year period. 

In another case where it was found that female 
employees were paid less than males for similar work, Taylor 
3. ordered the respondent to pay the complainants a retroactive 
pay increase: Department of Labour v. Simpson - Sears (flay ^ , 
1977). There, female sales clerks were being paid less than 
males. Thus, s. A- 1 ( 1 ) of the Saskatchewan Labour Standards 
Ac t had been violated. 

On appeal to the Court of Queen's Bench (Aug. 3, 
1977), MacDonald, 3 . upheld the decision, though the date to whi 
the pay increase was to be extended was altered. 

Likewise, in Department of Labour v . S . S . Kresge 
Co . Ltd. (Jan. 27, 1979), where female sales clerks were paid 
less than males, Taylor 3. ordered the respondents to pay a 
retroactive pay increase to the complainants. 

I n 3o - An n Booth v . Frame and Wheel Alliqnment Ltd . 
(Aug. 6, 1930), the complainant was paid less as a painter 
than males doing the same work. A three person Board could 
not find that the wage differential was founded on any seniority 
or merit system. Thus, a violation of the Labour Standards Act 
was held to have occurred. The complainant was awarded a 
retroactive pay increase to bring her wage up to that of male 
workers. 



- k6 - 



In Quebec, a judge found that a 1 A- year old girl 
was discriminated against in not being permitted to play goalie 
on an otherwise all-boy team: Francoise Turbide v. La Federa - 
tion Quebecoise de Hockey sur Glace (Nov. 15, 1973). The 
complainant had been told by the respondent that her team 
would be disqualified if she continued to play. Meyer, 3 . 
found that the complainant would not be in danger, nor would 
endanger other players, by her participation on the team. 
Thus, the disqualification was unnecessary and was a violation 
of s. 10 of the Ch arte des droits et libertes de la personne 
S. Q. 1975, c. 6. 

The Chairman ordered that the respondent cease 
its discriminatory policy and permit the complainant to con- 
tinue playing. Damages were a waded in the amounts of $131.00 
to the complainant's father for expenses in bringing the claim 
and $300.00 to the complainant as general damages. 



In Larouche v. Emergency Car Rental (dune 13, 19 3 0) 
the respondent refused to rent a 16 ft. truck to the complainant, 
because it doubted that a woman could drive it. In fact, the 
complainant had experience with such vehicles. 



The Chairman (Yves Laurier, 3.), found that the 
respondent's doubt was not founded on any factual knowledge of 
the complainant's capacity to drive the truck. Indeed, the 
respondent rented the truck to the complainant's male friend 
without asking if he had any experience driving large trucks. 



- 47 - 



Thus, the Chairman found that a claim under s. 10 
of the Charte des droits had been made out. He awarded the 
complainant damages for her loss of time ($44.00) and her 
personal injury ($100.00). Further, the Chairman stated: 

En cas d'atteinte illicite et 
i n ten ti o n n e 1 1 e , le tribunal peut 
en outre condamner son auteur a 
des dommages exemplaires. (p. 2) 

An additional $75.00 was awarded as exemplary 

damages . 



In flew Brunswick, a number of cases have been 
decided on the issue of sexual discrimination. 



Where a complainant was refused consideration as 
a candidate for a job as a cost accountant trainee, a five 
person Board of Inguiry found that she was discriminated against 
on the basis of sex: Elaine Stairs v. Maritime Cooperative 
Services (Apr. 23, 1975). 



The Board ordered the respondent to pay $150.00 
to the complainant for her " em ba r a s sm en t and humiliation". 
Further, the Board ordered that the respondent send a letter of 
assurance of its compliance with the law, and give notice to 
the same effect to its employees. Also, the Board required 
that the respondent post the preamble of the New Brunswick 
Human Rights Act R.S.M.B. 1973, c. H-ll on its premises, send 
a letter of apology to the complainant, and submit copies of 
its employment advertisements to the Human Rights Commission. 



- ^8 - 



In Jacqueline MacBean v. Village of Plaster Rock 
(Nov. 17, 1975) it was found that four women and six men applied 
for the position of Clerk-Treasurer of the respondent village. 
Mo women, including the complainant, received an interview. 

The Board of Inquiry (Robert Kerr) found the 
complainant to be as well, or better qualified as the male 
applicants given interviews. As such, the respondent was 
held to have violated s. 3 (1) of the Human Rights Code . The 
Board awarded the complainant no damages, but did order the 
respondent to send a letter of apology to the complainant, to 
send a letter of assurance of compliance wiht the Code to the 
Commission, to post a notice of such compliance to its employees, 
to post a preamble of the Code on its premises, and to submit 
copies of employment advertisements to the Commission for its 
prior approval. 

When a female employee was dismissed from employ- 
ment at a liquor store, a Board of Inquiry (Robert Kerr) found 
that a violation of the Code had taken place as the respondent 
wished to restrict the number of its female full-time employees; 
Shirley Mauqler v. N. B. Liquor Corp . (Dune 7, 1976). 

The Board also found that the respondent discriminated 
against the complainant during the course of her employment by 
requiring her to perform such duties as operating the cash 
register and cleaning up, duties that male employees were not 
required to carry out. 



I 



- 49 - 



Since the complainant would have been laid off, 
and called back as a casual employee anyway, the Board awarded 
damages accordingly. That is, consideration was given to the 
number of hours the complainant would have worked had she not 
been improperly dismissed. A reduction of 20% was then imposed 
for the complainant's failure to mitigate her losses. 

Further, the Board ordered that the complainant 
be reinstated in her position within one week of the decision. 
The respondent was to report any disciplinary action taken 
with respect to the complainant to the Commission. 

Other orders included a requirement that the res- 
pondent report its efforts to eliminate discriminatory work 
assignments to the Commission, that the respondent send a letter 
of assurance of its compliance with the Code to the Commission, 
and post the preamble of the Code on its premises. 

In Joan Bulger v. Royal Canadian Legion (March 6, 
1978), the complainant worked part-time as an office clerk at 
the respondent's premises. She then began to work as a doorman 
in order to relieve other employees. Although her work was 
satisfactory, the president of the legion ordered that she be 
dismissed, stating that the position was "no place for a woman". 

The Board found that a violation of s. 3(1) of the 
Code had occurred and ordered that the complainant be reinstated 
with seniority over employees hired since her dismissal. She 
was to be treated in the future in the same manner as other 



- 50 - 



employees. The respondent was required to give notice of any 
disciplinary action taken with respect to the complainant to 
the Commission for three months. 

In a Nova Scotia decision similar to that in 
Quebec ( Tu rbi de , supra ), a Board of Inquiry (R. E. Kimball) 
found that a girl v> a s discriminated against (per: s. 11 A of 
the Nova Scotia Human Rights Act C.S.N.S. 1979, c. H-2*0 in 
not being able to participate in a minor hockey league: Tina 
Forbes v. Yarmouth Minor Hockey Association (Oct. 27, 1979). 

The Board ordered that the complainant be permitted 
to register in the respondent association. 

in Donald Berry v. The Manor Inn (Aug. 19, 1950) 
the complainant alleyed that he was discriminated against in 
being dismissed from his job as a ba r ten d e r / doo rm an / w a i t e r in 
a lounge area of the respondent inn. The respondent's argu- 
ment was that its preference for female lounge employees coula 
be defended as a bona fide occupational qualification, sincp 
customers also preferred female employees. As such, the 
respondent would suffer an economic loss by hirina males. 

The Board rejected this argument stating that such 
a test would essentially be one based on community stanuards, 
but would not advance the aims of the jiva Scotia H < j m a n Rights 
Act. 



- 51 - 

The Board found 
alternative employment in th 
its damage award on the redu 
would have received in that 
accepted the position. A fu 
complainant's humiliation. 

In summary, the compensation and remedies awarded 
sful complainants. in sexual discrimination cases seem 
r basic types: (1) exemplary damages; (2) general 
(3) special damages; and ( A- ) functional remedies. 

(1) Exemplary Damages : These have only been 
awarded in two cases where the Boards felt that the respondent's 
discrimination was particularly deliberate or wanton: Jean 

Tha rp ; Larouche . Even so, the amounts were modest ($250.00 and 
$75.00 respectively). 

( 2 ) General Damages : These have been awarded 

by Boards guite frequently to compensate victims for psychological 
suffering resulting from discrimination. The amounts given to 
complainants vary greatly (for eg., $75.00 in Se gr a ve ; $S,000.00 
i n Hendry , ) but generally are not more than one or two hundred 
dollars. 

(3) Special Dama ges : These are awarded by Boards 
to compensate complainants for the actual out-of-pocket loss 
because of the discriminatory action taken against them. For 
example, in cases where it is found that female employees were 



that the complainant rejected 
e respondent inn. Thus, it based 
ced rate of pay that the complainant 
alternative employment had he 
rther $100.00 was awarded for the 



to su cce s 
to be fou 
damages; 



- 52 - 



paid less than males, Boards typically award a retroactive pay 
increase to the complainants ( Gares ; Fortey , for eg. ) 

Similarly, where a complainant is denied employ- 
ment because of her sex, Boards have awarded amounts representin 
lost wages ( C i n ku s ; Hen dry ; Ga wn e ) . 

(^) Functional Remedies : In certain cases Boards 
have ordered that a discriminatory act be corrected rather than, 
or in addition to giving a monetary award. For example, in 
Col f er , I ordered that the complainant be properly considered 
as an applicant by the respondent police commission. Similarly, 
i n Janice Lynn Foster Prof. MacPherson ordered that the 
respondent mill employ the complainant. 

Other examples include orders requiring future 
compliance with Human Rights legislation ( Segrave ; Robertson ) . 

In some cases, especially in Ontario and New 
Brunswick, Boards have required respondents to carry out certain 
acts in order to impress upon them the importance of compliance 
and the severity of violations. Such acts include the sending 
to Commissions of letters expressing respondents' willingness 
to comply with legislation, sending letters of apology to 
complainants, posting notices of compliance, etc. ( Shack ; 
Boyd ; Robertson ; Ma c Be a n ; Nauqler ) . In one case, a Board 
(Prof. Ian Hunter) found such remedies to be repugnant: Cinku s. 



- 53 - 



Remedy 

It was submitted in argument that if I found for 
the Complainant, then if she could pass the objective test 
administered to applicants for the position of police constable, 
and given her other qualifications, I should order that she 
be hired as a police constable, and as soon as the next posi- 
tion becomes available. This would make it unnecessary for 
an interview. Given the history of this matter, I must say 
I am doubtful that Ms. Hartling can receive a fair interview 
that would assess her candidacy on the merits. The Chief 
has testified he did not hire her on the merits, and it is 
questionable whether he or other senior officers could do 
the interview objectively in the face of this position. Finally, 
if she is interviewed at this point, and honestly rejected on 
the merits, fairness will not be seen to be done as she will 
have been rejected by a Chief who previously rejected her 
simply because she was a female. On the other hand, the 
interview stage is an integral element to the hiring process, 
and I do not think this Tribunal should substitute its 
decision (if such were the decision) for that of the Board of 
Police Commissioners (and the Chief) as to who should be hired 
as a police constable in the City of Timmins. As well, I 
think a comprehensive interview is an integral, indeed, critical 
element before anyone could make such a decision to hire. If 
Ms. Hartling passes the test, she should only be hired if she 
also meets the standards as determined by an interview. Should 
Ms. Hartling wish to pursue an application to be a police 



- 54 - 



constable, I have tried to give the process with respect to 
her application some greater objectivity through the manner 
of the order I am making. 

There is some evidence of lest wages, and a perio 
of unemployment, but also it is uncertain that Ms. Hartling 
would have been hired as a police constable if she had been 
assessed objectively on her merits. 

All in all, Ms. Hartling has suffered hurt feelin 
considerable anguish and public embarassmen t , given the 
arbitrary, discriminatory treatment she received in seeking 
employment with the City of Timmins police force. If she is 
successful in pursuing her application at this point, she 
will have lost some two years in her chosen career. If she 
chooses not to pursue her application at this point, or does 
so but is unsuccessful in being offered a position, she will 
always be left with the uncertainty as to whether she could 
have achieved her ambition of being a police constable with 
the Timmins police force if her application in 197S had been 
dealt with objectively and fairly on its merits and she had 
not been discriminated against because she is a female. 

ORDER 

For the foregoing reasons, this Board of Inquiry 
orders the following: 

I. It is ordered that the Respondents, the Board 
of Commissioners of Police, City of Timmins, and Chief Floyd 



- 55 - 



Schwantz, cease to contravene section ^ of the On ta r io Human 
Rights Code , and that the Respondents henceforth recruit all 
prospective employees for the position of police constables 
without regard to the sex of the applicant. 

2 . It is ordered that the Respondents shall give 
the Complainant the opportunity forthwith of taking the stan- 
dard test administered normally to applicants for the position 
of police constable with the City of Timmins police force prior 
to the interview stage in the hiring process, and if she 
satisfactorily passes that test then she shall proceed to the 
interview stage, but the interview shall include as well as 
the usual interviewing officers the members of the present 
Board of Police Commissioners of the City of Timmins. 

3. It is ordered that if Ms. Hartling satisfactoril 
passes the interview stage in becoming a constable and other- 
wise meets all the usual qualifications such that she would be 
offered a position if one were available, then she shall be 
offered the first position of constable that becomes available. 
In all events, the Board of Police Commissioners shall report 
to the Ontario Human Rights Commission the result of the 
above process with respect to Ms. Hartling' s application, 
together with the reasons in detail for her application being 
rejected, if it is ultimately rejected. 

^ . It is ordered that the Respondents are jointly 
and severally liable to the Complainant for general damages, 
which I fix at three thousand ($3,000.00) dollars, which sum 



56 - 



the Respondents shall pay to the Complainant forthwith. 

Dated at Toronto this 22nd day of June, 1931, 




Board of Inquiry